historical romance author & multi-purpose geek

Disclaimer: I make this post on behalf of myself, and not any other entity.

Brief recap of where we are in the litigation: As you may recall, Ellora’s Cave sued Jane Litte, claiming that Jane had defamed the company. Jane removed the case to federal court, and Ellora’s Cave, after a little dithering, tossed their motion for a temporary restraining order, leaving us with the long slog of discovery (the phase where each side gets evidence to support their case from various sources) and various dispositive motions ahead of us.

Right now, the court has pending before it a motion regarding discovery–specifically, a motion to quash a subpoena that was served on the @pubnt account on Twitter.

There is really nothing exciting in here. In fact, it’s relatively anticlimactic. The opposition to quash wasn’t written by Randazza, and it shows–it’s sloppy and badly written. But the actual opposition does what an opposition to a motion does–namely, it cites the relevant law and applies it. The relevant law is Federal Rule of Civil Procedure 45(d)(3), which says:

On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden.

The first few paragraphs of the opposition are all that matters. The defendants state:

“@pubnt incorrectly assert that Defendants’ issued the Subpoena to Twitter, Inc. (the “Subpoena”) to harass, defame and punish the persons known as @pubnt. In reality, Defendants’ seek the identities of @pubnt to pursue the discovery of admissible evidence.”

And then they go on to explain that admissible evidence includes evidence that makes the plaintiffs’ case (yes, this is true! It’s not perverse! It’s the way litigation works!), and also, that the identity of @pubnt is of specific interest because if @pubnt is acting at the behest of the plaintiffs, it would certainly bolster defendant’s counterclaim.

Almost done.

Then the opposition states: “@pubnt fail to reference a reason under Fed.R.Civ.P. 45 (d)(3) for which the Court could quash a subpoena.”

This seems to be an unfair reading of @pubnt’s motion to quash. No, @pubnt didn’t cite the relevant law, but “Jane Litte is a vicious troll, and if my identity is made known to her through a subpoena, she and her gang of violent gangbangers will put me in fear of my life for exercising my constitutional right to free speech” sounds like an undue burden to me. There’s no question that @pubnt has argued that it will be subjected to an undue burden. There’s no factual basis for that argument, but it has, in fact, made that completely unsupportable argument.

More puzzling still is the selection of tweets the defense chose to present from @pubnt, all from February 13th and 14th, none of which predate the subpoena (!!!), and which miss @pubnt’s most delightful assertions of insider knowledge. It’s like whoever grabbed this randomly printed the first few pages of tweets and didn’t bother scrolling past that. The opposition doesn’t even reference or quote any particular tweet claiming insider knowledge. Like I said, it’s sloppy.

That being said, the point being made–that @pubnt has claimed to have discoverable information–doesn’t depend on even a minorly capable scan of the account in question, particularly since @pubnt admitting to having discoverable information in its motion to the court.

But the opposition doesn’t at all respond directly to the assertion that @pubnt is in danger, except as quoted above, which was to say, “We want to know this information because it’s legally relevant, not because we want to chop up @pubnt and devour it.”

I don’t think that a lot needed to be said about that assertion. It’s like @pubnt said, “Jane Litte eats twitter accounts for breakfast.” It’s such a bizarre and baffling assertion that (a) literally nobody has ever said that Jane Litte does not eat twitter accounts for breakfast, for the same reason that nobody has said that Jane Litte is not a space alien with an armada of bee-drones, and (b) it’s flatly unbelievable and wildly paranoid.

But I always believe in making the court’s job easier, especially when the court’s job is to figure out how to make sense of several pages of complaints. A single sentence to the effect that @pubnt’s fears are so outlandish that they are not even supported by the ravings of the anonymous gossip blog that it cites would have been useful.

In any event, we will see if @pubnt uses the opportunity to reply. Or maybe even get a lawyer. (Have I mentioned that @pubnt should have a lawyer? Yes, it would be nice to have someone who knew the relevant law! Especially since the remedy @pubnt probably wants is not the one @pubnt is asking for, but whatever, who needs lawyers, amirite?)

But this all basically changes nothing: we still have a wildly unsourced letter to the court from @pubnt, and a response from the defendants that basically amounts to “LOL wut?”

The other thing that happened is this article about Ellora’s Cave. This morning, twitter was asking: Why don’t Tina Engler’s statements here violate the gag order? Why isn’t anyone doing anything about it?

Reminder: the gag order in question was entered in state court when the parties agreed to delay the hearing on the Temporary Restraining Order. The substance of that order is this:

In the interim, all parties agree that neither they, nor anyone under their direct control, shall post on the Internet any comments specifically and directly related to the factual allegations that form the basis of Ellora Cave’s defamation complaint; further, they agree not to comment online, directly or indirectly, on the allegations that form the basis of the defamation complaint. Nothing herein shall prohibit Plaintiffs from responding to defamatory posts or re-posts made by third parties related to the issues raised in this litigation.

“The interim” referred to above is the time between the filing of the joint motion for continuance and the scheduled hearing on the temporary restraining order. The gag order, then, was firmly tied to the outcome of the TRO hearing. And this makes sense: The point of a TRO is to maintain the status quo, and so until a TRO hearing can be had regarding defamation, it would make sense to have an order in place making sure that the TRO hearing isn’t completely defeated.

The literal date given for that hearing, and the end of the gag order, was October 27th, 2014. Plaintiffs informed defendants that they were dropping the TRO in late October. I suspect that a mid-November conversation isn’t a problem on simple date grounds: at that point, it was clear to all parties that the TRO was not going to be pursued.

Further, speaking to a reporter is not in violation of the gag order, which refers only to “post[ing] on the Internet” and “not comment[ing] online, directly or indirectly” — even if speaking to a reporter who posts a story is indirect commentary, speaking to a reporter who doesn’t post a story until after the TRO has officially been denied and the gag order explicitly expires is not a problem, either.

It’s also not clear to me from the article that Tina Engler actually did comment on the case. She said she did not know the identity of @pubnt, but that is not a comment specifically or directly related to the factual allegations forming the basis of the defamation complaint. And while the article refers to “Ellora’s Cave’s perspective,” it does not directly quote Engler, something that the author of the story does not hesitate to do.

Instead, everything the article says about EC’s perspective could have been gleaned from EC’s filings to the court. It’s quite possible that Engler said, “I’ll talk about Amazon and @pubnt, but if you want to know what EC’s perspective is on the substance of the pending litigation, you can read our briefs to the court, which I’ll send you.”

So in short, I don’t think there’s anything to see here.

Finally, for those who are saying, “Why doesn’t anything happen in response to the violation of the gag order?” the answer in addition to all of the above is because the court doesn’t have Google alerts set. The court is not an enforcer. If a party wants the court to enforce a gag order, it has to ask to do so. Nobody has asked, therefore nothing has happened.

Reminder: I post this as myself, and not on behalf of any other entity.

I would like to point out that in my initial disclaimer, I said I would try to be evenhanded. I tried with this post, but…it’s really hard to not make fun of pubnt, and I’m afraid that I failed. This is not evenhanded.

Reminder of where we are: Right now, we’re in the very beginning of the discovery phase. That means that the parties have agreed on a schedule for discovery and have produced initial witness lists. One individual on Jane’s list was the @pubnt account on Twitter. I mentioned this last week, and there was much rejoicing. The Nut went relatively silent on Twitter…but don’t worry, it has faxed a letter to the Court.

Note that, as one might have expected, the Nut does not have a solid grasp on legal proceedings, and that shows in this letter. Also note, however, that the Nut is presenting a legally cognizable argument, and even though the evidentiary basis is thin (to put it in friendly terms), the underlying legal argument is not completely unsound.

A summation of pubnt’s claims for those who don’t want to wade through them.

They don’t know anything about the business of Ellora’s Cave.

They can’t figure out why Jane wants to call them as witnesses for her side.
(Lemme help, pubnt. Here’s what’s going on. Jane thinks that you might be someone who is connected to EC, as in a personal friend of Jaid Black, or someone involved in the business. She suspects that you’ve been told inside information, and she hopes it was in email form. Jane isn’t asking you to testify on her behalf. She’s saying that you might have information that sheds light on the case. You may think that none of the information in your possession is useful to Jane, but your legal judgment is demonstrably what one would call “sketchy”.)

Pubnt claims that Jane is using the court proceedings to harass. Because pubnt is not good at using words, pubnt fails to mention that the person that is being harassed by Jane is pubnt, but that’s almost certainly what they mean. Pubnt also says that the gang that Jane is running (I think Pubnt means me and others who post on the #notchilled hashtag? — er, I’m a very bad stooge of Jane, since I disagree with her about 50% of the time, but hey) intends to harass it once its identity is known, presumably by taunting it a second time.Pubnt claims that there have been “very serious” threats made. I’m not sure what “very serious” threats have been made, but yeah, I would agree with pubnt that if pubnt’s identity was made public, and pubnt was someone well-respected, it would look very bad for them.

Chances are that pubnt is either (a) someone connected with the principals of the case, (b) someone we have never heard of, whose identity will strike bafflement into the hearts of all, or (c) someone we have already heard of, who already has little to no reputation in the community.

If I were masquerading as pubnt (plot twist!) I guess it would go badly for me when the mask got torn off, but I can’t imagine that pubnt is anyone who actually commands respect these days.

Pubnt repeats that pubnt knows nothing.

Pubnt claims that Jane is a “vicious troll” and that the judge needs to watch out for “possible gang activities” and “violation of our rights.” Pubnt doesn’t really mention which rights those are. Don’t worry; pubnt will get there. Eventually.

Pubnt mentions that Jane was banned from RWA. Pubnt fails to mention this was because Jane did not meet the strict definitional requirements for membership in RWA, which as a trade association must offer benefits only to those in the trade, but that’s because pubnt gets news from Stop the Goodreads Bullies, everyone’s favorite source for made-up anonymous bluster. Courts just love anonymous online bluster! (Lookit me not being evenhanded.)

Pubnt cites STGRB again for an attack that Jane supposedly led on an author.

Pubnt cites STGRB yet again for an attack that Jane supposedly led on Nathan Bransford, an agent.

Pubnt cites STGRB one more time for the proposition that Jane supports violence. The twitter thread, by the way, supports the proposition that Jane shrugs off hyperbole that invokes violent imagery. I’m pretty sure she doesn’t literally support authors getting punched in the throat for their books. You realize that anyone who reads this and looks at the receipts will say, “Uh, what? You’re afraid that you will be subject to actual violence because a different person said once that they were so disappointed in the ending of Veronica Roth’s book that they wanted to punch her in the throat, and Jane said NBD? How do you even function with fears like that?”Whatevs. Those are details.

Pubnt says: And there’s more! We just won’t go into details.

Pubnt says that Jane is jealous of success and targets those who are successful. (Which, of course, is why she went after EC when they reported a crushing loss of Amazon revenue, and not the publishers reporting record profits–but whatevs, details again.)

Pubnt says that Jane targets anyone who speaks out against her.

Pubnt says that they are “bystanders and legal case bloggers” (once again, no legal blog is mentioned) (Pubnt, you forgot to tell the judge that you gave Jaid Black legal advice!) Pubnt says that Jane runs her smear campaigns on Twitter, and so they have taken to the tweets to counteract her message by exercising their first amendment rights. This is the first time that pubnt manages to mention a cognizable right at stake here, so good job, pubby.I have not actually seen Jane tweet much, if at all, about this case, so presumably pubnt is conflating me with Jane here.

Pubnt mentions that Jane’s gang is made up of “self-published authors” and bloggers who profit by selling self-published authors advertisements. I am apparently motivated by jealousy, because I wish that my ebooks were priced at $7.99 with me getting 25% of net digital royalties. I am eaten up with hatred at all the many rejections I’ve received.

Pubnt reiterates that pubnt knows nothing, John Snow.

Pubnt once again calls Jane perverse and a vicious troll.

Pubnt says that it does NOT want to be a witness, nope, nosirree bob, in case there was any doubt.

To prove that pubnt is pubnt, it promises to tweet, on February 14th, “In the American tradition of free speech the public can sort out truth from fiction only when both sides have their say.” Oookay pubnt.

There we are.

There are two questions here.

1. Has pubnt made a cognizable legal argument? Uh…yes. Not very well, admittedly, but pubnt is operating pro se and judges give a lot of leeway to those who are representing themselves. Pubnt clearly alleges that (1) It is engaging in anonymous free speech; that (2) Jane’s proposed discovery is not for the purpose of discovering information about the case, but for the illicit purpose of uncovering its identity, and (3) that uncovering its identity would threaten its first amendment right to comment on the case anonymously.

These are perfectly reasonable legal arguments for someone to make, if they find themselves in the position where their right of anonymous free speech and potentially their safety is threatened by a malicious subpoena in a court proceeding. Those of us who are watching the O.o that starts with G and ends with E and has “amergat” in the middle know that there is real truth to the fact that sometimes, the veil of anonymity is necessary for safety.

So if you ever find yourself in the situation where you fear for your safety because of malicious discovery attempts, find yourself a lawyer immediately, so you can quash that subpoena.

And that is why the judge read the letter and understood it as a motion to quash any subpoenas relating to pubnt, and entered it on the docket as such. Good for the judge.

Now, I said that these are perfectly reasonable legal arguments. The other problem pubnt will have is a factual one. Jane will probably be able to explain, based on pubnt’s own tweets, why it looks like pubnt has specialized information about the case. It’s hard to be all “I know nothing, Jon Snow!” when you’ve spent the last few months talking about the fact that you know so much and nobody else knows anything.

I mean, pubnt has claimed multiple times that Ellora’s Cave is flush with cash. Bank balances are not things that the general public knows. Pubnt has claimed that it has proof of libel. If so, that would be discoverable information, and Jane Litte therefore has the right to know it. Pubnt claims that EC is about to merge with one of the Big Five–a fact so bizarre that, if true, it would surely be under embargo right now, and so pubnt’s claimed knowledge of it demonstrates that it has internal knowledge of EC’s workings. And that’s only going back to very late January; I’m sure we could harvest hundreds more tweets of claimed insider knowledge.

There are really only two possibilities. Either (a) pubnt has been lying to us all (quelle surprise), or (b) pubnt has inside knowledge of EC’s affairs and thus should be subject to discovery requests. Pubnt’s main problem is that in order to explain why they should not be subject to a subpoena, they will have to go to the court and say, “We are lying sacks of shit and you cannot trust a word we say.”

This is not a particularly comfortable legal posture.

One last question that has been bandied about on Twitter: Is the Nut in danger of…anything, for sending the Court a screed that exhibits pubnt’s typical antifactual connection to reality? There are some things in the letter that are almost certainly what we would call “lies”–I think we’ve established pretty firmly that the Nut is not a legal blogger, at least not in the sense that the Nut has a blog. Or that the Nut knows beans about law.

But the Nut hasn’t actually said this was on penalty of perjury. It wasn’t even presented to the Court as a formal legal filing. It was basically just a letter that said “HELP MEEE PLEEEEEEAAASSEEEEE THERE ARE WOLVES ON TWITTER.” If the Nut wants to eventually file something with the court to prove its point, it will eventually have to submit…something that could create some danger. But a pro se letter sent to a judge is highly unlikely to result in sanctions of any kind.

To recap, for those who haven’t heard and don’t know what is going on: Tess Gerritsen wrote a book called Gravity and sold the film rights to New Line Productions. She did quite a bit of work on a screenplay, but Hollywood being Hollywood, neither the book nor the screenplay never got made into a film. Or so she thought.

Many years later, director Alfonso Cuarón wrote a screenplay about an astronaut who was set adrift in space. This movie, also called Gravity, made a ton of money and received many accolades. Tess Gerritsen was asked how she felt about it, and basically said that the similarities were likely coincidental.

Later, however, she learned that Cuarón had been attached as director to her killed-in-infancy screenplay. And since Warner Brothers (who produced Cuarón’s Gravity), had purchased New Line in the interim, Gerritsen felt that the Gravity that was produced was her Gravity, and she was entitled to compensation under the contract. So she sued.

The district judge dismissed her complaint, claiming essentially (and here I’m skimming over a TON of corporate law that I do not care to rehash) that WB and New Line were separate entities, notwithstanding the fact that WB had purchased New Line.

Here’s the case in a nutshell: Gerritsen has a contract with New Line. If WB and New Line are separate entities, Gerritsen does not have a contract with WB, and cannot claim that WB breached her contract. If WB and New Line are the same entity, Gerritsen does have a contract with WB, and can claim that WB’s activities breached her contract with New Line.

Make sense?

I’m going to add another wrinkle. Gerritsen says the following:

Please note: this is not a case of copyright infringement. Warner Bros., through its ownership of New Line, also controls the film rights to my book.

I’m going to ask a question: Why isn’t this a case of copyright infringement? No, really. Why isn’t it one?

[Edit, 2/3 @7:25 AM: There is a much better answer to this question than what I originally said, which Gerritsen provides in the comments below: It’s not a case of copyright infringement because, having transferred this particular exclusive right to New Line, she no longer has standing to sue for copyright infringement. I’m leaving the original text up because I don’t believe in deleting my mistakes, but I will strike through as of this AM. Having not read either the book or Gerritsen’s screenplay, and not knowing how much Cuarón had access to, I’m not willing to judge whether there would hypothetically have been a case of infringement. Since she can’t bring one, it would be unreasonable for me to infer that there wouldn’t have been one from the lack of such a suit.

Mea culpa: I was importing my understanding of how a suit would work from how book contracts work, where I essentially license my rights to a publisher but retain enough of an interest in the copyright where I could sue. It shouldn’t have come to me as a surprise that Hollywood takes more rights, but I honestly didn’t consider that possibility. That’s my bad.]

The premise of Gerritsen’s book is an outbreak of a deadly virus in space, something that is not present in Cuarón’s film. Gerritsen says that she wrote a scene for the screenplay in which the international space station was destroyed by satellite debris, something that also happens in Cuarón’s Gravity.

The thing is, without more, Gerritsen has described an idea: a person in space sees their sanctuary destroyed by satellite debris. Gerritsen was not the first to come up with this idea, and she’s unlikely to be the last. Even if Cuarón was inspired by reading Gerritsen’s screenplay, unless he copied the expression of her idea, rather than just the idea itself, he would owe her absolutely nothing. That’s how our copyright law works. We get to see other people do things and say, “Ooh, good idea,” and do our own execution of it. If we had any other rule, we would all get sued. We all, to some extent, get ideas from the world around us.

So although Gerritsen does not say this, I suspect that there is a darned good reason that Gerritsen did not plead copyright infringement: Because she would not have a colorable case of infringement.

If she had a colorable case, she would (or at least should) have plead infringement in the alternative: Either WB had a contract with her and they breached it; or they did not have a contract with her, in which case they impermissibly infringed on her copyright in her book and screenplay. She gets to win either way.

Gerritsen did not plead infringement in the alternative, and since she appears to have lawyers who are competent in every other respect, I’m going to guess that this means that she was told that in the absence of a contract, Cuarón’s movie would not have infringed on her copyright. Based on what I’ve seen (which without a direct screenplay-to-screenplay comparison is very little), that’s probably right.

If that’s the case, then this line in Gerritsen’s blogpost strikes me as remarkably alarmist:

It [the district court’s decision] means that any parent film company who acquires a studio, and also acquires that studio’s intellectual properties, can exploit those properties without having to acknowledge or compensate the original authors.

It’s actually a lot simpler than that.

If Cuarón’s Gravity does not infringe on Gerritsen’s Gravity, WB had absolutely no need to acquire New Line in the first place to get access to Gerritsen’s intellectual property. WB did not need Gerritsen’s permission to exploit that intellectual property, because–recall–Gerritsen is not claiming that Cuarón’s Gravity infringed on her Gravity. Paramount, for instance, could have produced Cuarón’s Gravity. It would not have needed to acquire New Line to do it.

I am just not alarmed by the prospect of a Hollywood studio making a bunch of movies that it is legally allowed to make without compensating people whose rights have not been infringed. I can’t imagine why any Hollywood studio would have an incentive to go and buy other studios just so that it could make movies that it’s legally allowed to make without buying those other studios in the first place. And I’m going to suggest that we should wait to be alarmed by Hollywood’s unauthorized exploitation of intellectual property rights until we have a case where the artist is actually claiming that Hollywood exploited their intellectual property without authorization.

[Edit, 2/3 at 7:29 AM: Once again, I’m not going to stand by this conclusion. I will probably revamp and rethink. Maybe we should be alarmed. But I need a little more time to process, so I may not have my full reaction up until tonight.]

Disclaimer: These are my own views, and not the views of any other organization with which I might be associated.

So, the Case Management Conference happened on Monday, and there were a flurry of things posted on the docket. I’ll link to the information for those here, provide a little that didn’t show up on the public docket for whatever reason, and point out one or two tiny little things.

Here’s the new stuff that has appeared on the docket since my last post (as a note, Deirdre Saoirse Moen usually posts these with greater alacrity than I do; I tend to put them off if I think they’re boring.)

In preparation for the Case Management Conference, the parties filed the following:

Initial Disclosures: These are the Initial Disclosures of Ellora’s Cave. You can read more about initial disclosures here. Note that the docket lists initial disclosures filed by all plaintiffs. I’ve been told that the defendants filed initial disclosures as well, but those aren’t on the docket for some reason (more on this later).

These things are really mostly administrative. The only thing of remote interest in the two is this section in the report of the parties: “Defendant expects to file a motion for summary judgment after Plaintiff completes its discovery. Discovery shall be suspended while summary judgment motions are pending.”

First, a note on the difference between a motion for summary judgment and a motion to dismiss, and those with legal training, don’t smack me because yes, I’m not going to go into full detail here.

Motions to dismiss are generally made because a party believes the case is defective on the face of the complaint in some way (e.g., the court does not have jurisdiction, the statute of limitations has passed, or the person thinks that they’ve stated a claim, but in fact, the things that happened to them are just a bum rap, and not actionable at law). (It’s more complicated than that, but let’s just go with that.) (Obviously, there are other reasons than I’ve listed, but that’s the basic idea.)

A motion for summary judgment is generally made because a party believes the case cannot be won on the basis of the evidence that has been compiled.

By analogy: Imagine that you’re trying to figure out if a book falls in the genre of fiction labeled as a thriller. You can read the back of the book, and say, “Huh. This is a nonfiction biography of Desmond Tutu; it’s probably not a thriller.” Or you can read the book, and say, “Huh. This was not a fictional thriller; it was a biography of Desmond Tutu.” (There is nothing wrong with biographies of Desmond Tutu, but they are not fiction, and no matter how thrilling the subject matter, they also are not genre thrillers.)

A motion to dismiss will happen when you don’t have to read the evidence to determine that there’s a serious problem. A motion for summary judgment happens when you have the evidence compiled, and you can look at it and say, “Look, this doesn’t add up to what they promised in the blurb.”

So Jane is essentially saying that after Ellora’s Cave compiles all its evidence, she believes that she will be able to demonstrate that what they have doesn’t add up to what they promised in the blurb. If she can do this before she has to subpoena a bunch of people and spend even more money, all the better.

What does this mean? Well… do I have to tell you that it doesn’t mean whatever random people claiming to be legal bloggers think that it means? I didn’t think so. It means that Jane hopes that EC will not be able to prove its case once it has conducted discovery. That’s what it means. We will see.

But here is one tiny thing of potential interest: the defendants’ witness list. It didn’t end up on the docket, but I’m posting it here. You’ll notice that they identify more people than the plaintiffs do, including a dear friend of ours. Or…something like a dear friend. You know.

@PubNT Twitter account

The Pub Net Twitter account has made a series of statements on Twitter since the outset of this case, that are with obvious knowledge of the case at hand. The author behind this Twitter account will have additional information as to the operations of Ellora’s Cave.

Tina Engler

Tina Engler is the founder and head of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

Patty Marks

Patty Marks is the CEO of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

Susan Edwards

Susan Edwards, at all relevant times, was the COO of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

Raylene Gorlinksy

Raylene Gorlinksy is the Publisher of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

Whitney Mahlik

At all times relevant hereto, Whitney Mahlik was the Managing Editor of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave

Courtney Thomas

At all times relevant hereto, Courtney Thomas was the Chief Financial Officer of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

So there you are: a list of the people who will be subpoenaed in due course.

This is a long post which has nothing to do with Ellora’s Cave, and everything to do with Courtney Milan. It’s like I remembered that I actually run a business or something…?

The whiplash version of this post: I’ve hit several milestones involving large numbers, The Duchess Waris free, I’m playing with pricing, I will have a short story up in the first-ever RWA anthology, my next book will be a New Adult contemporary romance, and the first book in the Worth Saga will be out next May.

A. The claim by EC against DA alleging defamation.
B. The motion for a temporary restraining order by EC.
C. The removal of the case to federal court.
D. The counterclaim by EC against DA alleging abuse of process.

This post discusses Thread D. Ellora’s Cave has filed its reply to DA’s abuse of process counterclaim. You can read read the filing here.

This is structured much the same way as DA’s answer. In order to understand what they’re denying and what they’re admitting, just go paragraph by paragraph, comparing to DA’s counterclaim. You’re not going to find anything surprising in this if you do. Ellora’s Cave admits that it is incorporated in Ohio and does business in Summit County, and denies that it filed the litigation for the purposes of silencing and intimidating critics. Yawn; everyone expected that.

The only part of marginal interest is the defenses, so those who want to understand what they’re saying can go below the jump.

A brief sum-up of where we are in the Ellora’s Cave v. Dear Author litigation. There are four major things going on right now.

A. The claim by EC against DA alleging defamation.
B. The motion for a temporary restraining order by EC (discussed here and also peripherally here: the TRO hearing was continued by the judge, and so is in temporary limbo.)
C. The removal of the case to federal court (discussed here and here: we’re waiting for the judge to rule on the remand motion).
D. The counterclaim by EC against DA alleging abuse of process.

This post touches on threads A and D. Often I use “Jane” and “DA” interchangeably to refer to the defendants as a whole. Because Jane Litte, in her personal capacity, and Dear Author, the LLC, have replied separately, in this post I will refer to them separately.

As a preliminary note, the disclaimer in the above linked post notes that I am shooting for impartiality. This is a standard that I think may be unfamiliar to some. Impartiality doesn’t mean “pretending that all arguments are equal.” It means, “giving every argument the same shot of convincing me, regardless of who makes it.” It is not impartial to pretend that a bad argument is the equivalent of a good one.

With that out of the way, let’s talk about Ellora’s Cave’s reply on the question of remand.

Big picture reminder: There are four threads in the litigation at present.

A. The claim by EC against DA alleging defamation.
B. The motion for a temporary restraining order by EC.
C. The removal of the case to federal court.
D. The counterclaim by DA against EC alleging abuse of process.

There are two issues here: the legal question of remand, and the question of whether the remand motion is frivolous. I will address these separately.

The question of remand

Before I go into the discussion, a little legal nomenclature is in order. When a court agrees to hear an issue, there are often preliminary issues that must be decided. Does this court have the power to hear this case? Is this the right place for a hearing to take place? What items should be allowed in evidence, and what powers will the courts use to compel parties to produce items that might hurt their case? And so forth. Those preliminary issues often have specific names–jurisdiction, venue, discovery, and so forth. These issues are important, but deciding them does not directly answer the question of whether the defendant is liable for the claims made by the plaintiff. That decision is the big one, and a decision on that issue is what is called a decision on “the merits of the controversy” or “the merits of the case” or “the merits of the underlying claims”. Sometimes, this is simply referred to shorthand as “a decision on the merits.”

There are other times when the term “the merits” is used. For instance, if someone asks the judge for a temporary restraining order, you may have an evidentiary hearing, and the judge will make a decision as to whether a party is entitled to a TRO based on the merits of the temporary restraining order evidence. This can also be referred to as “the merits” of the temporary restraining order. Again, the shorthand used is sometimes to refer to this event as “the merits” as well. You can generally tell which “merits” are meant by “the merits” by looking at the context.

But a decision on the merits of a TRO hearing is completely different from a decision on the merits of the case itself, even though they both use the same words in shorthand. You can see that distinction observed here, in FRCP 65(a)(2), which makes it quite clear that a hearing on a preliminary injunction is not a trial on the merits of the controversy unless it is officially consolidated with a trial on the merits by the court.

I lay this all out because EC’s reply confuses the merits of the controversy with the merits of a temporary restraining order. In order to evaluate the reply, you need to understand that first, these are two separate things, and second, that no lawyer–indeed, no halfway decent law student–should confuse the two.

This is important because both parties agree that the controlling law on the remand question is set forth in Rose v. Giamatti, a case that I discussed earlier.Rose v. Giamatti indisputably holds that “waiver of the right to remove occurs only where the parties have fully litigated the merits of the dispute,” id. at 922 (emphasis mine), but that “any preliminary proceedings short of an adjudication on the merits of an action will not constitute a waiver of the statutory right of removal.” Id. (emphasis mine). Most importantly, Rose made it clear that a preliminary injunction hearing is “designed to preserve the status quo pending an adjudication of the merits of the underlying claims,” id. at 923 (emphasis mine), and so does not count as an adjudication on the merits of the case.

This is important because the legal question before the court in the remand motion is whether Dear Author agreed to submit to a litigation of the merits of the case before the state court. Rose says, unequivocally, that hearings on a preliminary injunction do not count as a litigation of the merits of the case, and the only hearing Dear Author agreed to was a hearing on the motion for a temporary injunction.

So what does Ellora’s Cave have to say about that?

The answer is: Nothing.

Nowhere in the reply brief does counsel explain why agreeing to a preliminary injunction hearing counts as a litigation of the merits of the dispute. Instead, he avoids the issue by simply referring to both things–the merits of a temporary restraining order hearing and the merits of the underlying claims–as simply “the merits.”

Thus, for instance, they say that Dear Author evinced a “clear and unequivocal request and agreement to conduct a state court hearing on the merits,” Reply at 1, but do not mention in the reply that this was a hearing on the merits of a temporary restraining order. They say that Defendants agreed to “a full airing of the issues,” Reply at 2, but do not quote the full sentence: “There will be a full airing of the issues at a preliminary injunction hearing.”Journal Entry at 1 (emphasis mine). [1]

The only time when Ellora’s Cave specifies which merits they mean is when they state: “Such conduct is starkly different from expressly requesting and agreeing to a hearing considering merits of the case before the State court.” Reply at 3 (emphasis mine).

This is such a tricky line. Yes, the conduct at issue in Rose is starkly different than agreeing to hear the merits of the case. But the implication of that sentence is that Dear Author agreed to a hearing on the merits of the case before the state court–and counsel cites no evidence, and we have seen none, that Defendants agreed to such a hearing.Nowhere in the reply brief do plaintiffs mention that the hearing defendants agreed to attend was a hearing on a temporary injunction. So the fact that a hearing on the merits of the case would be starkly different than a hearing on a preliminary injunction is about as legally relevant to this particular case as the fact that otters eat fish.

Either counsel intends to imply something that is not true, or counsel is throwing that sentence at the end of this section because he likes adding irrelevant statements. Counsel for Ellora’s Cave is either being sloppy intentionally or he is being sloppy unintentionally.

My conclusion: Ellora’s Cave has no chance of success on its remand motion, and the only way that Ellora’s Cave can hash together a reply brief that sounds like it is actually replying is by conflating two things that are not only slightly different, they are materially different–and are spelled out and identified as materially different in the primary case cited by counsel on both sides.

The question of frivolousness

There is a lot of “I am rubber, you are glue” going on by both parties. “I’m frivolous? No, I’m not! You’re the one who is frivolous.”

I gave you the schedule according to Randazza when I talked about defendants’ opposition to the remand. Here, as best as I can piece together from everything, is plaintiffs’ version of the schedule:

On October 21st, the court scheduled a hearing on the TRO.

On October 22nd, counsel for EC informed Randazza that he was going to file a motion to remand and would move to continue the TRO hearing, but that he was going to need some time to file the motion for remand.

On October 24th, the motion to continue was filed, precisely as Mastrantonio had told Randazza it would be.

Sometime after that–probably later on October 24th–the lawyers spoke over the phone about this. At this point, according to EC’s counsel, “because the facts on the ground had changed, the urgency associated with a temporary restraining order had become attenuated,” which I take to mean that EC may decide in the future, or has already decided, not to seek an immediate TRO.

I do not think we have enough evidence to decide why anyone is doing anything at this point. We haven’t participated in conferences. We don’t know what either parties’ overall game plan is. We don’t know what’s going on. If I were a judge in this case I would see the allegations and cross-allegations and think, “Dagnabbit, it’s going to be one of those.” (Except I would not think “dagnabbit,” even if I were a judge.) So I am going to leave the broader question of why EC filed the remand motion as an exercise to the reader.

The only thing I can discuss is the question of whether the remand motion is frivolous. As I said above, the only way that EC can even make it look like they have a potential argument is by conflating the extremely material difference between the merits of a TRO hearing and the merits of the underlying case. How do we decide if this is frivolous? F.R.C.P. Rule 11(b) states: “By presenting to the court a pleading, written motion, or other paper . . . an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.”

So the question we have is whether EC’s attorney believed that a decision on the merits of a claim is different from a decision on the merits of a temporary restraining order–or, as I said earlier, whether the attorney was sloppy intentionally or unintentionally. It’s hard for me to believe that conflation was unintentional.

First, a first-year law student with a basic understanding of civil procedure would not confuse the two. More importantly, it is quite clear that counsel for Ellora’s Cave does not confuse the two. In footnote 8–the only footnote where counsel for Ellora’s Cave uses the word “temporary” in the entire reply brief–counsel attacks Randazza’s view of the schedule. He claims that he never said they wanted to “buy time,” as Randazza claimed, to refile their TRO motion. Instead, he states that EC decided there was no need to hold a separate TRO hearing, because “the facts on the ground had changed, the urgency associated with a temporary restraining order had become attenuated, and that a consolidation of the hearing with the final hearing on the merits under Rule 65(a)(2) would avoid 2 hearings, 2 trips for defense counsel and his client, 2 briefings, and twice the use of the Court’s time and resources.”

This footnote makes it quite clear that counsel absolutely understands the difference between a hearing on the merits of the TRO and a final hearing on the merits of the case. It also makes it clear that until the “facts on the ground” changed as of the October 24th conversation, EC was under no illusions that the hearing on the TRO and a hearing on the merits had been consolidated, and had not suggested a consolidation to opposing counsel.

Every lawyer jockeys before the court to put the evidence in the best light possible to their clients. We all know that. Facts that look like buying time to refile the TRO to one person look like efficiently combining hearings to another.

But there is a point when you cannot make a colorable argument about the underlying facts, and that’s the point when a lawyer’s duty as an officer of the court takes precedence over the need to zealously represent their clients. I am at a loss as to how someone who is acting as an officer of the court can file a reply brief that fails to quote material, limiting words in a prior controlling decision and do so in a way that implies they have a colorable argument when, in fact, they do not.

What will happen as a result? I have no idea.

How judges handle their courtroom is a matter of discretion. It’s kind of like parental discipline. Some parents are swift to spank. Some start with a stern “I’m very disappointed in you” and never go past grounding or taking away video games. The state tolerates a wide variety of parental discipline–including the complete lack of discipline–and you have to be wildly inappropriate before it intervenes.

Same is true with the courtroom. I don’t know what kind of disciplinarian the judge here is. I believe that there are some judges who would not take kindly to this particularly game. We’ll find out what kind of judge we have here pretty soon.

But take what I say with a grain of salt: things that cross my “that’s not okay” line might not bother other judges. This reply crosses my personal “not okay” line.

What happens next: We will hear from the judge regarding the remand motion. I don’t know how long it will take him to issue a decision. I don’t know what, if anything, he will say about the question of frivolousness. After that, I don’t know if we’ll hear about the temporary restraining order.

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[1] As a sidenote: The plaintiffs attach here as proof that Defendants agreed to “a full airing of the issues” a journal entry from the state judge. When I first saw this, I didn’t tweet a link, because at first glance I thought it was simply the joint motion for continuance of the temporary restraining order filed before the state court, which we have all seen before. It was not. This is the judge’s memorializing that joint agreement between the parties–making it legally enforceable as a court order. There is very little difference between those two documents, but that “very little difference” is significant because the preamble to the two documents differ. The joint motion for continuance starts like this:

NOW COME COUNSEL for both Plaintiffs, Ellora’s Cave Publishing, Inc., and Jasmine-Jade Enterprises, LLC, and Defendants, Dear Author Media Network, LLC, and [Jane Litte], and hereby submit this Joint Motion for a Continuance of the Temporary Restraining Order Hearing. Counsel agree:

The journal entry starts like this:

This cause was set for a Temporary Restraining Order hearing on September 30, 2014. After informal discussion in chambers and without convening a hearing, this Court ordered the parties’ counsel to draft a temporary resolution to be in effect until a full hearing on the issues is convened and the Court subsequently makes a determination on the merits. The parties’ counsel submitted their temporary resolution to this Court and this Court hereby accepts their proposal, Ordering, Adjudging, and Decreeing that:

Using the journal entry rather than the joint motion matters. When counsel for Ellora’s Cave says that Dear Author agreed to a hearing on “the merits”, the journal entry by the judge is the only document that uses the word “the merits.” Even there it is quite clear upon a two-second examination that the state judge means “a full hearing on the merits of the temporary restraining order.” Had EC’s counsel pointed to the joint motion for continuance instead, you wouldn’t have even needed those two seconds to determine that DA’s agreement was with respect to only a hearing on the temporary restraining order.

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From here on out, I will limit my discussion of the issues to an impartial explanation of the arguments made by the parties and the court proceedings, and I will discuss those proceedings only to the extent that those proceedings are a public non-RWA matter which I am discussing on a non-RWA website.

“Impartial” does not mean “not choosing sides.” Judges are expected to be impartial, and yet they must choose a side at the end of the day. I will tell you what I honestly think of the legal arguments before the court. If Dear Author makes a legal argument that I think is crap, I will tell you that I think so, explain why, and try to provide enough support that the intrepid can decide for themselves if I’m wrong. The same holds true for Ellora’s Cave.

From here on out, I will not discuss what Ellora’s Cave or its principals are doing, except to the extent required to discuss court filings.

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RWA may have matters regarding Ellora’s Cave come before it during the next two years. RWA must not only decide those matters fairly and impartially, it must be believed to be fair and impartial by all parties. Because of my prior involvement discussing the EC v. DA suit, I am officially updating my conflict of interest form with RWA to register that I have a conflict with Ellora’s Cave. Under section 17.3.13 of RWA’s Policies & Procedures manual, “[a]ny Membership Committee members, Directors, and RWA staff with a conflict of interest in an investigation cannot participate in the investigation or vote on the outcome, as applicable.” This means that if any matter at all involving Ellora’s Cave comes before RWA during my tenure as a member of the Board of Directors, I will not be involved in the discussion with the board and will not participate in the outcome of that decision.

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